Jones v. Billings
| Citation | 289 A.2d 39 |
| Parties | Lillian B. JONES v. Everett BILLINGS. |
| Decision Date | 31 March 1972 |
| Court | Supreme Judicial Court of Maine (US) |
Collins & Crandall by Wayne R. Crandall, Rockland, Rendle A. Jones, Camden, for plaintiff.
Preti & Flaherty by Robert E. Burns, John J. Flaherty, Portland, A. Alan Grossman, Rockland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Plaintiff brought action as personal representative of Michael L. Jones, deceased, seeking damages for the alleged wrongful death and conscious suffering of the decedent. The complaint alleges the deceased child, aged three years, climbed or fell into a cesspool on the premises of the defendant, negligently left open and unprotected by the defendant. The complaint does not recite the claimed status of the decedent on defendant's premises nor does it allege the nature of the duty claimed to be owed by the defendant to the decedent. The defendant elected to attack the complaint by a motion to dismiss for failure to state a claim on which relief can be granted, pursuant to M.R.C.P., Rule 12(b)(6). Without elaborating reasons for his action the Justice below granted the motion and dismissed the complaint. Plaintiff appeals.
The test of the sufficiency of a complaint under the new rules of civil procedure is whether or not it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. See Richards v. Ellis (1967-Me.) 233 A.2d 37, 38; Field, McKusick & Wroth, 2d. Ed., Vol. 1, Page 248, Commentary Sec. 12.11. The complaint in no way negatives the possibility of proving that the decedent was on defendant's premises by invitation. It remains open to the plaintiff to prove such status. The negligence of the defendant is alleged and plaintiff is therefore entitled to prove violation by the defendant of the duty owed to an invitee. The defendant suggests in argument that the invitational theory may have been abandoned by plaintiff at the hearing on the motion. It so, we can only say that the record is barren of any such indication and we cannot conjecture as to what may have transpired off the record. We conclude that for this reason alone the complaint was improperly dismissed.
The plaintiff urges that two other theories are possible and the subject of proof under the complaint as worded. We reject the first of these theories but are now convinced that the second theory should be deemed tenable.
The plaintiff first contends that even if the decedent were shown to be a trespasser on defendant's premises, a duty was owed by the defendant if the the plaintiff can show a violation of the well statute, 17 M.R.S.A., Sec. 3902. The statute provides:
This is a penal statute which includes no provision for a civil remedy in event of violation. 1 In the absence of a clear indication of legislative intent to enlarge or extend duty owed at common law, we have consistently declined to treat a statute or ordinance exclusively penal in nature as having such effect. Such was the import and intended meaning of holdings that violation of a penal statute would not constitute 'negligence per se.' Kimball v. Davis (1918) 117 Me. 187, 103 A. 154; McCullough v. Lalumiere (1960) 156 Me. 479, 483, 166 A.2d 702; Jones v. Co-operative Association (1912) 109 Me. 448, 84 A. 985; see also Wells v. Henry W. Kuhs Realty Co. (1954-Mo.) 269 S.W.2d 761, 767 and Richmond v. Warren Institution for Savings (1940) 307 Mass. 483, 30 N.E.2d 407, 408. Supecifically, this statute in no way enlarges the common law duty owed to trespassers. However, evidence of a violation of the 'well' statute, if indeed the condition described in the complaint constitutes a 'well' as defined by the statute, might be received as evidence of negligence if it were first shown that the circumstances and the relationship between the defendant and the decedent were such as to impose upon the defendant a duty to exercise care for his safety. That duty is not, however, raised by the statute itself but must be raised independently thereof.
The plaintiff also contends that, assuming arguendo that decedent is shown to have been a trespassing child, she should nevertheless be able to proceed on the theory of 'attractive nuisance.' This doctrine originated with the so-called 'turntable cases' 2 and was based upon the judicial fiction that the turntable or other similar hazardous condition attracts the young child and this enticement substitutes for an invitation and imposes upon the landowner the duties and obligations owed to an invitee. In a series of cases 3 culminating in Lewis v. Mains (1954)150 Me. 75, 104 A.2d 432 we have steadfastly declined to incorporate this fiction into our law. Our reluctance stemmed not from a stubborn adherence to a feudal concept that property rights are more sacred than the safety of children but rather from a serious doubt as to whether such a patently contrived fiction should be employed to lift from the shoulders of the parents their primary responsibility for the supervision and protection of their children and place that burden upon strangers. In an effort to avoid the fictional approach, the authors of the Restatement of the Law of Torts devised a rule which would forth-rightly recognize the status of the child as a trespasser but would impose a duty upon the landowner under carefully limited circimstances. The suggested rule was further refined and is stated in the Restatement of the Law of Torts, 2d Ed., Vol. 2, Page 197, Sec. 339 as follows:
'Sec. 339 Artificial Conditions Highly Dangerous to Trespassing Children
'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to knew and which he realize or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'...
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